ML20203K058
| ML20203K058 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 07/24/1986 |
| From: | Barth C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#386-178 OL, NUDOCS 8608060140 | |
| Download: ML20203K058 (28) | |
Text
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s SNRC Y U '4 A10:54 UNITED STATES OF Af,1ERICMgcgFFicE 0F sg7pj,y MUCLEAR REGULATORY COMMISSIDE7'hgyt"v!q g
DEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Flatter of )
)
CAROLINA POWER AND LIGIIT )
CO!!PANY AND NORTH CAROLINA ) Docket No. 50-400 OL EASTERN MUl!ICIPAL POWER )
AGENCY )
)
(Shearon Harris Nuclear Power Plant, ) G.
Unit 1) )
NRC STAFF BRIEF IN REPLY TO THE APPEAL OF CONSERVATION COUNCIL OF NORTH CAROLINA, WELLS EDDLEf1AN AND JCINT INTERVENORS, FROM THE LICENSING BOARD'S FINAL DECISION Charles A. Barth Counsel for NRC Staff l
July 24, 1986 pagS1868!*t8%go ,
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TABLE OF CONTENTS PAGE TAB LE O F C I T ATION S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 I. I N T R O D U C TI O N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. S T A T E T.f E N T O F C A S E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III . Q UESTIONS PRESEN TED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 IV. ARGUMENT................................................. 3 A. The Licensing Board Correctly Found That Drug Use Was Not Widespread At The Harris Site. . . . . . . . . . . . . . . 3 B. The Licensing Board Did Not Err As To Fact Or Law In Resolving Contention 57-C-3, Nighttime Notification , In Favor of Applicants . . . . . . . . . . . . . . . . 13 C. The Licensing Board Properly Issued Its Final D e ci s io n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 V. S UfGTARY AND CON CLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
e TABLE OF AUTHORITIES PAGE(S)
COURT CASES Charlton v. FTC. 543 F.2d 903, (D. C. Cir. 1976) . . . . . . . . . . . . . . . 5 NRC CASES ARIZONA PUBLIC SERVICE COMPANY (Palo Verde Nuclear Generating Station Units 1, 2 and 3),
A L A B - 3 3 6 , 4 N R C 3 , ( 19 7 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 CAROLINA POWER & LIGHT COMPANY AND NORTH CAROLINA EASTERN MUNICIPAL POWER AGEllCY (Shearon Harris Nuclear Power Plant, Unit 1)
ALAB-837, 23 NRC May 19,1986 slip Op . . . . . . . . . . . . . . 3,9,12,14,20 LB P-8 6-11, 23 NRC 29 4 (198 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim LD P-85-4 9, 2 2 NR C 899 (1985. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 LB P-8 5 - 2 8, 2 2 NR C 410 (198 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 LBP-82-119A , 16 NR C 2 08 9 (1982 ) . . . . . . . . . . . . . . . . . . . . . . . . . 2 Order, ASLAB (June 13, 1986............................. 21 CLEVELAND ELECTRIC ILLUMINATING CO.
Perry Nuclear Power Plant, Units 1 and 2)
ALAB-8 02, 21 N R C 4 90, (198 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 CONSOLIDATED EDISON COMPANY (Indian Point Station Units No.1, 2, and 3)
A L A B -18 8 , 7 A E C 3 2 3 , ( 19 7 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 DUKE POWER COMPANY ET AL. (Catawba Nuclear Station, Units 1 and 2)
A L A B - 813 , 2 2 N R C 5 9 ( 19 8 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A L A B- 3 5 5 , 4 N R C ( 19 7 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 LDP-8 4-37, 2 0 NR C 933 , (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 LOITISIANA POUER AND LIGHT CO. (Waterford Steam / Electric Station, Unit 3),
AL AB -73 2 , 17 N R C 107 6 ( 19 8 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 NIAGARA MOHAWK POWER CORPORATION (Nine Mile Point Nuclear Station, Unit 2),
ALAB-264, 3 NRC 3 4 7 (1975 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 NORTHERN INDIANA PUBLIC SERVICE, (Bailly Generating Station Nuclear 1),
ALAB-303, 2 NR C 858 (1975 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 l
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PAGE(S)
FORTilERN STATES POWER COMPANY (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-104, 6 AEC 179 (1973)....................................................... 3 PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
A L A B -7 91, 2 0 N R C 819, (19 84 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 PHILADELPIIIA ELECTRIC COMPANY, Limerick Generating '
Station, Units 1 and 2),
A L A B - 819 , 2 2 N R C 6 81, ( 19 8 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 FUDLIC SERVICE COMPANY NFW IIAMPSHIRE (Seabrook Station, Units 1 and 2)
A L A B -4 7 7. , 6 N R C 3 3 ( 19 7 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 PUERTO RICO ELECTRIC POWER AUTHORITY North Coast Nuclear Power Plant, Unit 1)
A L A B - 6 4 8 , 14 N R C 3 4 ( 19 81 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 PUGET SOUND POWER AND T TCHT COMPANY (Skagit Nuclear Power Project Units 1 and 2),
ALAB-446, 6 N RC 870, (1977) . . . . . . . . . . . . . , . . . . . . . . . . . . . . . 4 TENNESSEE VALLEY AUTHORITY (Hartsville Nuclear Plant, Units IA, 2A,1B and 2B)
A L A B -4 6 3 , 7 NR C 3 41 (197 8 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,7,10 V'ISCONSIN ELECTRIC POWER COMPANY (Point Beach Nuclear Plant, Unit 1)
A L A B -719 , 17 N R C 3 8 7 ( 19 7 8 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 REGULATIONS 10 C . F . R . I 2 . 7 6 2 ( d ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 10 C . F . R Part 5 0, Appendix E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 PUBLICATIONS AND MISCELLANEOUS NUREG 0654 FEMA-Rep-1, Rev.1, Criteria For Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness In Support of Nuclear Power Plant, N ove mb e r 19 8 0 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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PAGE(S)
FEMA-43, Standard Guide For the Evaluation of Alert And Notification Systems For Nuclear Power Plants, September 1983......................................................... 14 47 Fed. Reg. 8705............................................ 2 4 7 Fe d . R e g . 3 6 2 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I
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%$?fD UNITED STATES OF AMERICA _'Uh "-
NUCLEAR REGULATORY COMMISSION g q A10:54 BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEEL BOARD .
In the Matter of )
)
CAROLINA POWER AND LIG11T )
COMPANY AND NCRTII CAROLINA ) Docket No. 50-400 OL EASTERN MUNICIPAL POWER )
AGENCY )
)
(Shearon Ilarris Nuclear Power Plant, )
Unit 1) )
NRC STAFF BRIEF IN REPLY TO TIIE APPEAL OF CONSERVATION COUNCIL OF NORTH CAROLINA, WELLS EDDLEMAN AND JOINT INTERVENORS, FROM TIIE LICENSING DOARD'S FINAL DECISION I. INTRODUCTION On May 7, 1986, Conservation Council of North Carolina (CCNC),
Wells Eddleman, and the Join't Intervenors 1 ("Intervenors") filed a Notice of Appeal from the Final Licensing Board Decision (FLBD) issued on April 28, 1986. EI The appellate brief of Intervenors CCNC and Mr. Eddleman was filed on June 9, 1986, pursuant to a grant by the Appeal Board of a three day extension of time. " Appeal From Final Licensing Board Decision" (Intervenors' Brief), p. 1. For the reasons 1/ No contentions proffered by Joint Intervenors are subjects of the Appeal.
-2/ Carolina Power and Light Co. and North Carolina Eastern Municipal i Power Agency (Shearon IIarris Nucient Power Plant), LBP-86-11, 23 NRC 294 (1986).
set forth below, the Licensing Board's decision on all matters which are the subject of this appeal should be affirmed.
II. STATEMENT OF THE CASE On January 27, 1982, a " Notice of ' Receipt of Application for Facility Operating Licenses; Availability of Applicants' Environmental Report; Consideration of Issuance of Facility Operating Licenses; and Opportunity for a IIearing" was published for the Shearon IIarris facility in the Federal Register. 47 Fed. Reg. 3898 (January 27, 1982). A Licensing Board was established to conduct the proceeding. " Establishment of Atomic Safety and Licensing Board to Preside in Proceeding" 47 Fed.
Reg. 8705 (March 1,1987).
The Licensing Board received nine petitions for leave to intervene and cix of those were found to have standing and to have proposed at least one good contention. LDP-82-119A,16 URC 2069 (1982). Numerous contentions on a wide range of safety, environmental, and emergency planning issues were subsequently admitted by the Licensing Board. All but two of these contentions were resolved in three previously issued Partial Initial Decisions. 3I The Final Licensing Board Decision which is the subject of this appeal resolved the two remaining admitted contentions , drug use and nighttime notification, in favor of the Applicants.
~3/
See LBP-85-49, 22 NRC 899 (1985); LDP-85-28, 22 NRC 232 (1985);
and LBP-85-5, 21 NRC 410 (1985).
l III. QUESTIONS PRESENTED Intervenors' appeal presents the following questions for resolution by the Appeal Board:
(1) Does the evidence support the Licensing Board's resolution of Contention WB-3 ,
widespread drug use, in favor of Applicants?
(2) Does the evidence support the Licensing Board's resolution of Contention 5 7- C-3 , nighttime notification in favor of Applicants?
- 3) Was the Final Licensing Board Decision Properly Issued?
IV. ARGUMENT A. The Licensing Board Correctly Found That Drug Use Was Not Widespread At the Harris Site.
The Applicants have accurately set forth the chronology of CCNC Contention VlB-3 relating to allege drug abuse during construction of the Ilarris plant from the time the contention was proposed through the Licensing Board's FLBD and the appeal. Applicants' Brief at 3-7. The Staff concurs with the chronology and will not repeat here.
At the outset the Staff hhs a few comments as to the standard of l review. The Appeal Board has articulated what it expects to find in an initial decision rendered by a Licensing Board. According to the Appeal l
Board, a Licensing Board has the general duty to ensure that its decisions contain a sufficient explanation of e.ny ruling on a contested issue of law or fact to enable the parties and the Appeal Board designated to review that decision readily to understand the basis for the ruling. Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-104, 6 AEC 179 n.2 (1973). If I
i
_4-resort is necessary to technical language not readily comprehensible to a layman, the Appeal Board has found it to be the obligation of the writer of the opinion in question to clearly state the significance of what is being said in the report in terms of what is being decided.
Arizona Public Service Company (Palo Verde Nuclear Generating Station Units 1, 2 and 3), ALAB-336, 4 NRC 3, 5 (1976). The Licensing Board must articulate in reasonable detail the basis for the course of action it has chosen to take. Public Service Company of New Hampshire (Seabrook Station Unita 1 and 2), ALAB-422, 6 NRC 33, 41 (1977). The Appeal Board has held that this obligation is satisfied if a decision sufficiently informs the parties of the disposition of their contention. Id.
The Appeal Board has also discussed the weight to be given to Licensing Board's findings. For example, the Appeal Board has noted its raluctance to overturn Licensing Board Findings with respect to the triviality or significance of a particular environmental impact, since the Appeal Board believed that such a determination must be an exercise of judgment based on the " ... sum total of the facts of record in the particular case." See, Puget Sound Power and Light Company (Skagit Nuclear Power Project Units 1 and 2), ALAB-446, 6 NRC 870, 871 n.3 (1977). Although Skagit concerns the environmental impacts of a particular pre-LWA activity , the same reluctance on the part of the Appeal Board would be justified for a Licensing Board's determination of I the significance of any possible drug use at the I!arris site. The Inter-venors' attack here in this appeal goes to the Licensing Board's consideration of the evidence. The proper evidentiary standard applicable here was set forth in Tennessee Valley Authority (llartsville
Nuclear Plant, Units IA, 2A, 1B and 2B) ALAB-463, 7 NRC 341, 360, (1978) where the Appeal Board stated:
Absent some special statutory standard of proof, factual issues decided by this or any other Federal agency are determined by a preponderance of the evidence. Charlton v. FTC. 543 F.2d 903, 967 (D.C. Cir. 1976); Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 405, n.19 (1976); and Consolidated Edison Company (Indian Point Station Unit No. 2),
ALAB-188, 7 AEC 323, 356-7, (1974).
This same standard was applied more recently in Pacific Gas and Electric Company (Diablo Canyon IIuclear Power Plant, Units 1 and 2), ALAD-763, 19 NRC 57 (1984). Further the Appeal Board has recognized that it is not free to disregcrd the fact that Licensing Boards are the Commission's primary fact-finding tribunals. Northern Indiana Public Service, (Bailly Generating Station Nuclear 1), ALAB-303, 2 NRC 858, 867 (1975). The Appeal Board hcs the right to modify or reject the findings of the Licensing Ecard if, after giving the Licensing Board's decision the probative force it intrinsically deserves, the Appeal Board is convinced that the record compels a different result. Niagara Mohawk Power Corporation (Nine f.lile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 357 (1975). The Appe.1 Board has noted that it would not exercise its authority to reject or modify a Licensing Board's findings lightly. Id.
This llarris Appeal Board has summarized the foregoing when it stated:
When we review factual findings like those under challenge, we will overturn them only where 'we are convinced that the record compels a different result .' Here, the record compels only the result I reached by the Licensing Board.
ALAB-837, 23 NRC , May 29, 1986 slip op at 4. Footnote omitted.
l l
The Licensing Board here has fully complied with all of the appropriate legal standards identified above. It considered in a detailed exposition -all of the evidence presented. It articulated the basis for the weight it gave to the evidence. Differences among witnesses that were material were analyzed. The decision is supported by a preponderance of the evidence.
Intervenors urge the Appeal Board to reverse the Licensing Board in regard to widespread drug use. Intervenors' Brief at 3. However, they j give no citation to any part of the evidentiary record which would support their request. All of the infirmities of previous Intervenor appeal briefs noted by the Appeal Board on pages 4 and 5 of its slip opinion in Harris, ALAB-837 appertain here. Only the bald assertion of the intervenors exists that drug use is widespread. They marshal no evidence to support their thesis. Intervenors further allege that "All of the Applicants' testimony about this program, on paper, is irrelevant if drug use". . . is widespread. Intervenors' Brief at 3. First there is no probative evidence in the record that drug use is widespread. There is only the statement of Deputy Sheriff Hensly that he thought it was widespread. Tr. 9248. Mr. Hensly has no experience or expertisc in drug use and under Licensing Board questioning stated that he had no expertise and only a feeling. (Tr. 9247-9256). Secondly, the Applicants' j prefiled written testimony was admitted into evidence without a relevance objection by the Intervenors. Tr. 8326, 8471, 8893, 8993, 9274, 0294 and l l
10,077. Intervenors' argument, now put forth for the first time that Applicants' written testimony is irrelevant, is unseemly. They may not i
l
I
. raise on Appeal for the first time an argument not previously made below. O Intervenors next urge that "The Licensing Board erred by basing its decision on findings of fact that were misleading . . ." Intervenors' Brief 4. No misleading Licensing Board findings are identified by Intervenors. 10 C.F.R. I 2.762(d)(1) here is severely traversed. No error of fact or law is alleged, the portion of the record relied upon by Intervenors to allege error is not identified, and no rational discussion of said purported error is made.
The undercover investigation at the site by the Wake County Sheriff's office and State Bureau of Investigation has little or nothing to do with the issue , which is whether drug use was widespread and whether construction was thereby adversely affected. Intervenors state in their discussion of the use of metal detectors and dogs that:
The Doard also put weight on statements about the undercover investigation made by Mr. Bensinger who had no involvement with the investigation.
Intervencrs' Brief at 4. Intervenors leave out of their Brief that the Licensing Board stated:
CP&L's employees, King and Joyner, who have experience as law enforcement officers, and CP&L's expert , Mr. Bensinger, testified that the random dog searches would not pose a threat to the safety of the undercover agents.
-4/
Puerto Rico Electric Power Authority, (North Coast Nuclear Power Plant, Unit 1), ALAB-648, 14 NRC 34 (1981), and Tennessee Valley Authority, (Hartsville Nuclear Plant, Units 1A, 2A, 1B and 2B),
ALAB-463, 7 NRC 341, 348 (1978).
- 23 NRC 310, f 25. Thus it was not Mr. Densigner alone who so testified regarding the undercover investigation as Intervenors' brief erroneously infers. In addition, the Intervenors identify no evidence in the record and make no rational explanation why the Licensing Board should not rely upon Mr. Densinger for such an expert opinion. Mr. Bensinger is one of the foremost experts on drug use in the United States, see Applicants' testimony following transcript page 8326. Mr. Bensinger's expertise and testimony stand unimpeached and unimpaired. The Licensing Board properly should place great weight upon the testimony of Messrs. King,
.Toyner, and Densinger on this matter. Intervenors' argument is without merit .
Intervenors allege that the Licensing Board's statement that CP&L wanted to get rid of drug users "is untenable" since only 8 of 29 identified drug user suspects in 1982 were terminated in 1982.
Intervenors' Brief at 4. Intervenors ignore Mr. King's testimony that of tl'c 29 suspects, all those who were determined to be involved in drug activity were released from the job site. King, Tr. 8813. Intervenors claim that CP&L did not want to get rid of drug users at the Harris site is without merit or evidentiary support.
Intervenors argues, without citation to the decision, that the Licensing Board improperly gave almost no weight to the testimony of an unidentified former female employee. Intervenors' Brief at 5. That unidentified female is Patty Miriello. The Licensing Board thoroughly analyzed her testimony, is 74 and 77, 23 NRC at 325 and 326, and, for good cause, found her lacking credibility.
. , Intervenors state "A review of the entire record will show overwhelmingly that drug abuse on the site was widespread. . . ."
Intervenors' Brief at 5. Once again, there is no marshalling of the evidence to support this. There are no citations to the evidentiary record. There is nothing but Intervenors unsupported and self-serving statements. E Finally, Intervenors allege as error that the Licensing Board relied upon "the prevalence of drugs in the American Society" as the basis of its ultimate holding that drug use was not widespread at the Ilarris site.
Intervenors' Brief at 3. In fact, the Licensing Board did not base its decision as Intervenors assert. Intervenors' assignment of error misrepresents both the evidentiary record and the Licensing Board's FLDD. The Licensing Board did not rely on drug prevalence in the American Society or the American population as alleged by Intervenors.
The 5% to 12% figure cited in Intervenors' Brief on page 3 is "of the nation's work force" FLBD is. 11 and 60, 23 NRC at 305 and 321 respectively. There is very substantial difference between the American population and the country's work force. The Licensing Board's use of the 5-12% of the nation's work force was not something which determined its resolution of WD-3. It was only background information given by Mr.
Bensinger, Applicants' consultant, in response to a question by CCNC's counsel. Tr. 8338. CCNC did not question the answer or later rebut it.
IInd the Licensing Board relied upon the 5-12% figure, it would have been proper to do so.
5/ See Harris, ALAB-837, slip op. at 9.
- . - = - _ . . . _ _ . _ - _ - - -
l The use of the word " rely" in Intervenors' exception is puzzling. !
As previously noted, the "5-12% of the work force" figures originated with the testimony of Mr. Bensinger in response to a cross-examination question by CCNC's counsel. It was given only to establish Mr.
Densinger's perspective of drug use (Tr. 8378). No challenge to those figures was made below by any party and they cannot now be challenged for the first time before the Appeal Board. Tennessee Valley Authority (IIartsville Nuclear Plant, Units 1A, 2A, 1B and 2B), ALAB-463, 7 i
HI'C 341, 348 (1978). What the reliance is to which Intervenors object is not set forth. How that alleged reliance significantly affected the final outcome is not explained by intervenors. Why that purported reliance was in error is not explained by intervenors. Evidence in the record to contradict those drug use figures is not identified by Intervenors. No party below questioned these figures. They are not the gist of the Licensing Board's resolution of Contention WB-3. For the Licensing Board to have recited uncontested figures of drug usage in the work force in its opinion is not reversible error.
In this assignment of error Intervenors allege that the Licensing Board concluded that approximately 4.5% of site employees during 1985 used drugs. Intervenors' Brief 3. 6,/ This is taken out of context and misrepresents the Licensing Board's decision. The quotation relates to i 127 of the FLBD, 23 NRC at 344, although the Intervenors did not so cite
-6/ There are no citations to the record in Intervenors' Brief. Indeed, the second paragraph of this first assignment of error is little more than a collection of Intervenors' erroneous views of the proceeding
! bearing little resemblance to the record.
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, to the record. There the Licensing Board made an estimate of onsite drug users based upon 1985 terminations of employment due to suspected drug involvement. The Licensing Board's relevant finding is set forth in )
the conclusion of paragraph 138, 23 NRC at 347: "We conclude that the I!arris [ drug] use levels probably are below national work force averages, but we cannot say by how much." The gravamen of the Licensing Board's decision follows: "Uc will base our conclusion about ' widespread' drug use on a balance of all relevant factors" f 52, 23 NRC at 318.
And this the Licensing Board did. It took into account:
- 1) V'ritten and oral testimony of Applicants' witnesses, including f.1r . Peter Bensinger who is a leading international expert on drug use, f 11, 23 NRC at 305;
- 2) CP&L increased emphasis on drug detection and educational programs in 1925, f 59, 23 NRC at 321;
- 3) The search dogs and their handlers, is 20-26, 23 NRC at 309 cnd 310;
- 4) Applicants' detection and educational programs, is80-121, 23 NRC 327-342;
- 5) Number of persons suspected of drug use and terminated at the site, is 124-131, 23 NRC 343-346; G) The investigation by the Wake County Sheriff's Department and the State Bureau of Investigation, is 13-52, 23 NRC 306-318;
- 7) Observations of the NRC inspectors on site, f 79, 23 NRC at 327;
- 8) Site accident rates fs 63-65, 23 NRC 322;
. 9) The quantity of drugs found at the site, is 66-70, 23 NRC 322-324; and,
- 10) The age and sex composition of the site workers, is 71-72, 23 NEC 324, 325.
Thus, this Licensing Board decision was not based upon a finding of 4.5% of the work force using drugs but rather upon a consideration of all relevant evidence.
SUf.if.1ARY The Licensing Board made a detailed exposition of the record analyzing the evidence and the credibility and expertise of the witnesses who appeared. The Licensing Board's conclusion that drug use at the Harris site is not widespread and that work at the site has not been adversely affected is supported by a preponderance of the evidence.
Intervenors have done little other than mischaracterize the Licensing Doard's decision, the evidence, and the record. They have not identified any substantial error of fact or law committed by the Licensing Board.
They have identified no sigt.ificant evidence that would compel a different decision. For all of the reasons set forth above the Appeal Board should find that there is no merit to Intervenors' appeal of the Licensing Board's '
decision on Contention WB-3.
B. The Licensing Board Did Not Err As To Fact or Law in Resolving Contention 57-C-3, Nighttime Notification In Favor of Applicants Applicants have set out the background of Contention 57-C-3 relating to ?!r. Eddleman's challenge to the ability of the Harris alert and notification system to alert the public on a summer night when most people are asleep. Applicants' Brief at 23-31. The Staff agrees with Applicants' statement of background and will repeat it here. The Intervenors assert that the Licensing Board committed seven reversible errors in resolving contention 57-C-3 in favor of applicants. These allegations of error are addressed seriatim below.
- 1) Intervenors assert that it was error for the Licensing Board to include informal alerting and backup alerting in resolving Contention 57-C-3. Intervenors' Brief at 6-7. Intervenors say no more. They do not cite the Licensing Board's actions below or in the FLBD as to where such alleged errors occurred. They give no citation to legal or factual matters in the record which would support them. They only make the bald statement that the Licensing Board erred. This carries an economy of words too far. They have inadequately briefed their allegation of i
error and it must be treated as waived. O i
l 7/ See Ilarris, ALAB-837, slip . op. May 29, 1986 at 3, 8, 9 and 10, In accord see Wisconsin Electric Power 1 including footnote 20.
Company (Point Beach Nuclear Plant, Unit 1). ALAB-719,17 NRC 387, 395 (1978); Cleveland Electric Illuminatin g Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-802, 21 NEC 490, 496 (1983). In j their assertion of error Intervenors characterize the applicable
- guidance as requiring that the alert and notification system be l capable of notifying " essentially 100%" of the population within the EPZ within 15 minutes. Intervonors' Brief at 6. This is an inaccu-(FOOTNOTE CONTINUED ON NEXT PAGE) 1
If the Intervenors had adequately briefed the matter, there would still be no merit to their assignment of error. Neither Commission regulations, 10 C.F.R. Part 50, nor guidance NUREG 0654 FEf.1A-Rep-1, Rev. 1, " Criteria For Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants," November 1980 (hereinafter 0654) or FEPIA-43, " Standard Guide For the Evaluation of Alert And Notification Systems For Nuclear Power Plant s ," (hereinafter FEMA 43) September 1983, prohibit informal notification or backup alerting. Informal notification as an acceptable procedure has been recognized by a Licensing Board. 8_/ The Licensing Board was acting properly in considering informal notification as it did in paragraphs 57-61, 23 NRC at 388-389 and additional alerting by mobile units in paragraphs 62-65, 23 NRC at 389 and 390. Since the Intervenors have alleged no error of law or fact by the Licensing Board, their complaint has no merit and should be denied.
(FOOTNOTE CONTINUED FRO *1 PREVIOUS PAGE)
! rate description of the present regulations and guidance concerning alert notification systems. 10 C.F.R. Part 50, Appendix E, section IV(d)(3) sets forth a " design objective of the prompt notification system [that it] shall have the capability to essentially completo the initial notification of the public within the plume exposure pathway EPZ within about 15 minutes," emphasis supplied.
As the Licensing Board noted in discussing this regulation the Commission has noted that the " essentially 100%" language applies only to notification of population within the first five miles of the EPZ, and that a smaller notification percentage for the rest of the EPZ would be acceptable. See 23 NRC f 12 at 369.
l -S/
Duke Power Company (Catawba Nuclear Station, Units 1 and 2),
l LBP-84-37, 20 NRC 933, 973 (1984), aff'd , ALAB-813, 22 NRC 59 (1985).
l
- 2) Intervenors allege , again without citation to the FLBD, the evidentiary record, Federal regulations or other guidance, that it was error by the Licensing Board not to consider siren failures. Intervenors' Brief at 7. The direct answer to this allegation is that the probability of siren failure was not within the issue raised by Contention 57-C-3.
Intervenors admit this. Intervenors' Brief at 7. It is not reversible error for a licensing board to confine its consideration to issues put in controversy by the admitted contentions.
- 3) The Intervenors' third assignment of error is that the Licensing Board should have " wait [ed] for the official test results before issuing its decision." Intervenors' Brief at 7. What Intervenors mean by " official test" is not at all clear. This is another instance of Intervenors baldly asserting error without citation to the record where such error supposedly was committed, and with no citation to the record or other authority to support their allegation. For purposes of this appeal, the Staff interprets the terms " official test" to refer to the evaluation conducted by FEf,IA using Appendix 111 of 0654 and FEP.fA 43. No NRC or FEMA regulation or guidance requires a test of the entire siren system prior to FEf.1A and NRC concluding that the emergency plans provide reasonable assurance that adequate protective measures can be taken.
I Intervenors' allegation is essentially the same as that made in proposed finding 12 of the Attorney General of North Carolina. b We reiterate i
here from the Staff's Proposed Findings , that the Appeal Board has i 9/ Attorney General's " Proposed Findings of Fact And Conclusions of Law on Eddleman Contention 57-C-35 Nighttime Notification," at 3, December 16, 1985.
rejected as without merit an Intervenor's claim that a Licensing Board is required as a matter of law to await the Final FEMA findings on sirens. EI See Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, M NRC 59 (1985). There is no merit to Intervenors' objection and it should be denied.
- 4) Intervenors allege that the Licensing Board erred in neglecting 4
to censider the indetectability of failures in tone alert radios. Inter-
. venors' Drief at 8. No citations to the record are made and Intervenors make no reference to authority which would require such consideration.
T?ather Intervenors simply refer to Mr. Eddleman's proposed findings. It i
would appear that Intervenors are referring to paragraph number 7 of T!r. Eddleman's proposed findings. NI Mr. Eddleman's proposed finding i number 7 is equally devoid of information as to the legal or factual basis which would support the Intervenors' thesis. Again , the Intervenors have misrepresented the record and the Licensing Board's decision. The l truth of the matter is that the Licensing Board's FLBD does indeed f
-10/ "NRC Staff / FEMA Proposed Findings of Fact and Conclusions of Law on Eddleman Contention 57-C-3 (Nighttime Notification)" at 50-51, i Deconber 22, 1985. See also Louisiana Power and Light Co.
! (Unterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076, 1105 (1983) where the Appeal Board stated ". . . Installation and
, testing of the stren system is precisely the type of matter for which l the Commission believed predictive findings can suffice at this
) sta ge . " In accord Philadelphia Electric Company (Limerick j Generating Station, Units 1 and 2), ALAD-819, 22 HRC 681, 710 (1985): Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant. Units 1 and 2), ALAB-791, 20 NRC 819, 834-35 (1984).
11/ " Wells Eddiman's Proposed Findings of Fact and Conclusions of Law I
on Contention 57-C-3 (Alert / Notification) (Reopened)" dated March 14,1986.
. . - = . -
i consider detecting failure of a tone alert radio. 23 NRC at 394, is 76-77.
There is no merit to Intervenor's faulty assertion.
- 5) Intervenors urge that the Board erred in accepting witness Kcast as credible. Intervenors' Brief at 8. They only refer to f.1r. Eddleman's Proposed Finding number 9. That proposed finding implies that f.1r. I: east somehow dishonestly changed the percent of people
- awake at night from 10 to 3 (citing Tr. 10,600-10,601). Again , the Intervenors have misrepresented the record, a copy of which was available to them. On transcript page 10,600 the question by the llorth Carolina Assistant Attorney General was f
" I believe in your October 18th testimony you added 3% based on the Arbitron rating service, did you not, for people who would already be awake during the 1:0pyo 6:00 am period? A.
(Kenst] That's correct." -
Nowhere on transcript pages 10,600 or 10,601 does ?,1r. Keast or anyone else use an added 10% figure. There is no change or inconsistency in
- f. r. Keast's testimony on pages 10,600 and 10,601 of the transcript. The 12/ On transcript page 10, 748 occurs the following dialogue:
[Keast] If we start with the information from Arbitron, that 10 percent of the people are already l awake, and henec would be alerted, then --
JUDGE KELLEY: 10 percent?
THE WITNESS: (Keast) That's the Arbitron figures.
! JUDGE KELLEY: I thought it was 3 l
percent?
l Tile WITNESS: (Keast) That's the incremental effect. It's 10. [ Emphasis supplied).
l l
t
. Intervenors' allegation of error is without foundation in fact and should be denied. The record, available to Intervenor Eddleman, clearly shows that f!r. Keust did not change the percent of persons awake at night from 10 to 3 percent as alleged by intervenors.
The second attack by Intervenors upon Mr. Keast is equally without merit. Intervenors allege Mr. Keast lachs credibility because f.1r. Keast
". . . said he 'could not xxxxxxxx have said anything like' (Tr. 10575-80) what he said on Tr. 10507, and made other error".
Eddleman Proposed Finding Number 9 cited supra at 3.
During cross-examination on March 4, 1986, the record shows that Mr. Keast temporarily could not remember whether he had previously used the exact words which the Assistant Attorney General said he had used (and which in fact he had not). Given a moment to think, Mr. Keast agreed with the substance of the Assistant Attorney General's paraphrase of his (Keast's) carlier testimony. The appropriate passages in the transcript are set forth below. b The Intervenors' allegations against 13/ A. [Keast] I think Dr. Kryter just explained why, or to a certain extent why your observation is correct. That is, that the adjustments which are applied to compute EPNdB values are based on tests on waking people and those adjustments are spectral adjustments and adjustments for the temporal pattern, sound. [Tr.10,507] .
Q. [ Gamin] I believe you answered, "I believe Dr. Kryter just explained why, or to what extent your observation is correct" -- referring to Judge Kelley -- "that is, the adjustment applied to impute EPNdB values are based on tests on waking people and those adjustments are spectral adjustments for temporal patterns, sound."
Do you recall having made that answer A. [Keast] No, I do not. [Tr. 10,579. ]
(FOOTNOTE CONTINUED ON NEXT PAGE)
Mr. Keast are without foundation and should be dismissed. It is this kind of treatment of Mr. Keast that caused the members of the Licensing Board to commend Mr. Keast for his patience and accuracy. Tr. 9646, 9672.
- 6) Intervenors erroneously allege that the Licensing Board did not take seriously past failures in tone alert radios. Intervenors' Brief at 8.
Mr. Keast testified as to the failure of tone alert radios to alert persons, both at Fort St. Vrain. Keast at 14 following Tr.10,723 and Hatch Tr. 10,758. The Licensing Board took into account a failure-to-notify figure which it deemed reasonable in light of the public information and education program to be instituted at Harris. 23 NEC, T 82 at 305.
There is no merit to Intervenors' allegation and it should be dismissed.
- 7) Finally, in regard to nighttime notification, Intervenors allege "The Licensing Board erred in its cavalier treatment of Intervenors' proposed findings . . . .
Intervenors' Brief at 8. Intervenors do not cite one single finding of theirs the substance of which the Licensing Board did not address in its Final Decision. This broad unsubstantiated (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
Q. [ Gamin] Do you recall words to that effect?
A. [Keast] I recall that general line of questioning but I don't recall any answer like you just read.
Q. Well, if you had given an answer like that, would it have been wrong?
A. No. [ Tr. 10,580 ] .
allegation of impropriety on the part of the Licensing Board is groundless and is not further addressed. EI C. The Licensing Board Properly Issued Its Final Decision The Intervenors allegc- that the Licensing Board could not issue its decision until it resolved two outstanding contentions and until the Appeal Board issued its decision (s) on prior appealed matters. Intervenors' Brief at 9. The two outstanding unresolved contentions are not identified by the Intervenors , and with good reason. Although there were no admitted contentions on this subject, the Licensing Board retained jurisdiction on this matter pending receipt of a report by the Commis-sion's Office of Investigation. 23 NRC at 408. In its decision the Licensing Board noted that there remained a question regarding possible' harassment of two of Applicants' former employees. 03 NRC at 408, note 50. Just prior to issuance of its FLBD, Intervenors proffered a new contention regarding falsification of radiation exposure records. The Licensing Board issued an Order on June 13, 1986 resolving the then outstanding allegation of harassment and the outstanding proffered contention regarding falsified radiation records. El Should Intervenors have been displeased with this final Licensing Board order, they should have appealed, the time for which has long since past. The Licensing 14/ See IIarris, ALAB-837, slip op at 9, cited supra.
-15/ " Memorandum and Order (Rejecting Late Proposed Contention Concerning Alleged Falsification of Radiation Exposure Records" June 13,1986.
I
, Board's FLBD resolved all remaining admitted contentions and was properly issued.
SUMMAnY AND CONCLUSION The Intervenors' appeal on WB-3, widespread drug use, is replete with misrepresentations of the record and the Final Licensing Board Decision and totally fails to identify a single significant error of fact or law which would compel a result other than that reached by the Licensing Board. The seven errors alleged to have been committed by the Licensing Board upon the nighttime alerting contention are erroneous and without merit. The Intervenors' assertions that the Final Decision could not be issued as there were two outstanding unresolved contentions is factually not true. For all of the reasons set forth above, the Staff concludes that all of the Licensing Board's rulings which are the subject of the instant appeal should be affirmed and that the Final Licensing Board Decision should be sustained in its entirety.
Respectfully submitted, 4?h Charles A. Barth Counsel for NRC Staff l
l Dated at Bethesda, Maryland
[ this 24th day of July,1986 l
t
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMf.1ISSION BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
CAROLINA POWER AND LIGIIT )
COMPAliY AND NORTII CAROLINA ) Docket No. 50-400 OL EASTERN MUNICIPAL POWER )
AGENCY )
)
(Shearon Harris Nuclear Power Plant, )
Unit 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF BRIEF IN REPLY TO THE APPEAL OF CONSERVATION COUNCIL OF NORTH CAROLINA, WELLS EDDLEf FAN AND JOINT INTERVENORS, FROM Tile LICENSING BOARD'S FINAL DECISION" in the above-captioned proceeding have been served on the following by deposit in the United States mail first class, or (*)
through deposit in the Nuclear Regulatory Commission's internal mail system, this 47th day of July,1986:
James L. Ecliey, Chairman
- Richard D. Wilson, M.D.
Administrative Judge 729 Hunter Street Atomic Safety and Licensing Board Apex, NC 27502 U.S. Nuclear Regulatory Commission t.'ashington, DC 20555
??r. Glenn O. Bright
- Travis Payne, Esq.
Administrative Judge 723 W. Johnson Street Atomic Safety and Licensing Board P.O. Box 12643 U.S. Nuclear Regulatory Commission Raleigh , NC 27605 Washington, DC 20555 Dr. James 1f. Carpenter
- Dr. Linda Little Administrative Judge Governor's Waste Management Building Atomic Safety and Licensing Board 513 Albermarle Building U.S. Nuclear Regulatory Commission 325 North Salisbury Street Washington, DC 20555 Raleigh, NC 27611 Daniel F. Read John Runkle, Esq. Executive Coordinator CilANGE Conservation Counsel of North Carolina P.O. Box 2151 307 Granville Rd.
Raleigh, NC 27602 Chapel 11111, NC 27514
, Steven Rochlis, Esq. H. Joseph Flynn, Esq.
Regional Counsel Associate General Counsel FEMA Office of General Counsel 1371 Peachtree Street, N.E. FEMA Atlanta, GA 30300 500 C Street, S.W. Rm 840 Washington, DC 20472 Atomic Safety and Licensing Appeal Bradley W. Jones, Esq.
Board Panel
- Regional Counsel, USNRC, Region II U.S. Nuclear Regulatory Commission 101 Marietta St. , N.W. Suite 2000 Washington, DC 20555 Atlanta, GA 30323 Robert P. Grubcr Executive Director Thomas A. Baxter, Esq.
Public Staff - NCUC John H. O'Neill, Jr. , Esq.
P.O. Box 091 Shaw, Pittman, Potts & Trowbridge Raleigh, NC 27002 1800 M Street, N.W.
Washington, DC 20036 UcIls Eddleman Atomic Safety and Licensing Board 812 Yancy Street Panel
- Durham, NC 27701 U.S. Nuclear Regulatory Commission Washington, DC 20555 Richard E. Jones, Esq. H. A. Cole, Jr. , Esq.
Vice President and Senior Counsel Special Deputy Attorney General Carolina Power & Light Company P.O. Box 629 411 Fayetteville Street Mall Raleigh, NC 27601 Raleigh, NC 27602 Docketing and Service Section*
Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Charles A. Barth Counsel for NRC Staff i
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